By William Fisher
The efforts of the Obama Administration to maintain the secrecy of the counter-terrorism policies of its predecessor, the administration of former President George W. Bush, hit a major speed bump last week.
On Wednesday, a federal judge ruled that the National Security Agency (NSA) violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon.
The judge found that the plaintiffs had been “subjected to unlawful surveillance,” and ruled that the government was liable to pay them damages.
The Bush administration had claimed that its secret surveillance program was lawful. Under the program, the National Security Agency monitored Americans’ international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.
The ruling by Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, rejected the claim of the Department of Justice (DOJ) that the charity’s lawsuit should be dismissed because allowing it to go forward could reveal state secrets and compromise national security. That claim was first asserted by the Bush administration and continued under President Obama.
The judge said that such expansive use of the so-called state-secrets
privilege amounted to “unfettered executive-branch discretion” that had
“obvious potential for governmental abuse and overreaching.”
Even though Congress had enacted the warrant law “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority, “ the judge said that position would enable government officials to violate that law.
The Haramain case has been especially closely watched because the government inadvertently disclosed a classified document that made clear that the charity and its lawyers had been subjected to surveillance without warrants.
In several previous cases, plaintiffs have been unable to establish “standing” – the right to sue – because they were unable to prove they were wiretapped unlawfully. In the Haramain case, the plaintiffs were not allowed to use the document to prove that they had standing, but Eisenberg and other lawyers were able to use public information to prove they had been wiretapped. Those public records including a 2007 speech by an official of the Federal Bureau of Investigation (FBI) who acknowledged that Al Haramain had been placed under surveillance.
Jon Eisenberg, a lawyer for Al Haramain, told IPS, “President Obama needs to understand what a wrong road he has taken vis a vis the Bush Justice Department.”
He added, “I think of this situation like the war in Afghanistan. George Bush started it. Obama inherited it. Now it's Obama's war. And Obama just wants it to go away. The current course of justice was charted by George W. Bush. Obama inherited it. And if Obama keeps going down the same road as Bush, by appealing this verdict, he will have inherited Bush's whole can of worms. Does Obama really want that to be his legacy?"
Eisenberg said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”
“Judge Walker is saying that FISA and federal statutes like it are not
optional,” he said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”
The origins of the Al-Haramain case trace to a finding by the Bush Administration’s Treasury Department that the group was funneling money to terrorists in Chechnya. The government shut it down, but inadvertently released a classified document to the group’s lawyers. The lawyers contend that this document revealed that the government had been wiretapping both the organization and its lawyers without a warrant. Judge Walker agreed.
The organization sued the Bush Administration. But when the case came to court in 2006, the government invoked the so-called “state secrets privilege,” claiming that the case could not go forward because it would reveal information that would compromise national security.
But Judge Walker rejected the government’s claims. He ruled that the president could not invoke the state secrets privilege to conceal the evidence and dismiss the case.
The state secrets privilege was once rarely used. But during the George W. Bush administration is was invoked dozens of times in an ongoing effort to keep lawsuits from ever being argued in court.
Even before the election of Barack Obama, Congress began considering legislation that would impose rules governing the use of the state secrets privilege. The State Secrets Protection Act was originally introduced in 2008 by the late Senator Edward M. Kennedy, democrat of Massachusetts, and then-Republican Senator Arlen Specter of Pennsylvania. Sen. Specter has since become a Democrat.
Among other provisions, the proposed law would allow federal judges to examine information whose release the government claims would comprise national security to determine the validity of that claim. This is what has just been done by Judge Walker, but almost all observers believe the case would be strongest if approved by Congressional statute.
The legislation is now championed by Vermont Democrat Sen. Pat Leahy, chairman of the powerful Senate Judiciary Committee. But its consideration has been stalled because of the crowded calendar caused by the health care debate and other “must pass” legislation.
However, civil liberties advocates continue to try to whip up support for the proposed law. Annie Sovcik, an attorney with advocacy group Human Rights First (HRF), says she is not certain of the effect the court decision will have on the progress of legislation designed to regulate use of the State Secrets Privilege.
But she told IPS, “Our goal for the moment is to continue to gather co-sponsors, press for a mark-up by the Senate Judiciary Committee, and look for an opportunity to bring the legislation to the floor for an up or down vote.”